SUPREME COURT.

Otago Daily Times, Issue 13695, 11 September 1906, Page 7

SUPREME COURT.

;.':': ■ in. banco. . 10^ ..'(Before His Honor Mr'.Jitstice Cooper,) ■ t ~>j : :- . l-ECKIE v. con.v. : In this caae Alexander Lectio nppctilcd fjgamst the jmlsinenl of Air (i. Cniickahanl; S.M.. .who hptl fined him jE3C for mi illicit sale of liquor at Kensington en ,Tuno 17. Air Hanlon appeared for ■appellant, and .Mr. Frnser for respondent. . ■ -. ' , ill Fraaorsaid this was an appoal from, a - coiiviclion by.'Mr Cruic'ksliaiifc, 'S.M., wlio Jiifl fined defendant for an illicit sale of liquor. Tlio facto simply were that defendant was a storekeeper and ''TjbWt ■ sliin dealer, carrying on business >in \ii. small '9 hop in Kensington. On Sunday,' June'l7, Sergeant Conn E aw,,a number, of men:'.in defendant's store-and among others one Patrick Lynch; •the sergeant-had seen Patrick Lynch before .he'wenl into (ho place, and he followed him. an- and found the place ill darkness. He «truok a match, and discovered about 11 '..men there, some sitting down and some sUndir.gup.-' Tho sergeant remarked.,'" You are doing a good business hero.','.and left. A constable ontßido ebw Lynch' coine out with two bottles of beer, and went up and found out what had taken place. ' The evidence won!d_ show that when Lynch, went into' dofendnnt'a shop'ho had uo bottles of .beer und when he came out'he had the two bottles jn his liockflt. Tho only thing.'that couldue said against Lynch himself was that lie Vfas a dipsomaniac. He was an honest, nreo," and, unlike,.he (Mr. Fraser) was- afraid, thoMajority of tho witnesses in. these cases, ho- _ am not like to burden his conscience with * j"c, but- told the truth. Lynch stated plainly that he bought the liquor, and was supplied with ft there. ' Defendant said ho Biipp.ied Lyncli, with' a driilk of hop bcor, (Hit learned counsel thought 'if the word hop was left out defendant's evidence was'probably quite correct. When defendant was: asked'howho accounted for this man Jiaving; two bottles of beer ho said it was a very common thing for people who bought hop' beer ,to have bnttlea of-beer .in their lxSckcto. - Lynch admitted'being' undor tho influence of liquor that'day. Learned counfcl submitted' that upon tho evidence l the conviction by tho magistrate was. amply jusii\\m\ ho could arrive at'no other decision. The whole of the evidence called previously would.be laid before tlie court, with tho addition that the constable noticed that' Lynch had. 110 beer in his pocket whop ,]ic went'into: defendant's shop, .and that 'wl'lr'n became qui ho had the. two bottles, Pl 4 .evidence was not given. previously, because-, tho case was considered'sufficiently strong without it.- ' ". „,' :.' .

_ Evidence wiis given by Sergeant Conn... w,ho, : in ' croßß-uxoniinalionj.'' said .. ori : searching Leckie's promise)) afterwards .lie did', not find any liquor, though there..were plenty of empty bottles/ Constable M'Cmtncy. sta-fed , tint Lynch hod no bottles, of'beer in his pocket when he went into the shop.—Patrjck 'Lynch, cross-examined; said he laid, .the magistrate his recollection •of what took u place on .ibb'l7th June was not very clear. 'Ho told tho i magistrate be thought ,lie bought' the bpor front Leckie. Had a welly liatl memory 'at any time.—Constable Murray gavo evidence as to Feeing Lynch come out . ol Leckie's store with-, two bottles of beer in his riockot. ' ■■> ' -\ . ifip Hanlon, having stated; that: he v/ou'd . address the court later oil, called.the appe!->, lapf, Alexander Leckie, who emphatically' 'denied tliat ho sold liquor to Patrick Lynch, as alleged in tho information upon which ho was convicted and fined, Mr Hanlon said 'the-caso .presented quite a different appoarBiicotq what it did in. the' Magistrate's Court, Lynch'had admitted was " upon the burst"; that his, memory'was always bad," but wors.'e when he was drinking? anil he did not recollect what had occurred on Juno 17.. Thjs niM was brought before the'/lower court

* few days before and remanded for medical treatment, and to-day, he come; beforo his Honor perfectly sober.' Notwithstanding that, lie was no\v sober a' 1 , he cou'd recollect was that he had obtained some liquor, and hud pnjd 83 for it. this man. staled that ha purchased the bser front the appejlant, but it would lib.extremely risky to convict uuohOiisuncorroborated testimony, seeing that lib was a. liaVd drinker and had been oii the border line' of d-elirium tremens."' The crucial pouij'wai' whether this man htuj the bottles of beer in Oiis possession when' ho entered house.' In the lower court (he evidence on' this point •was ,bv iid means/' conclusive.'- -.Lynch was s.wiiy ,'from the'house JO,"minutes after lio had' been r,een to enter by the noljcb, and during that time'lie might "have obtained the 'fhe fact that tlio police failed in two. visits to'find liny beer on Leckie's premises discounted the idea that he kept a s!y grog shop. All the circumstancea "were i»rjectlv consistent with, tho innocence of Leckie.

His Honor intimated thai there was no need j Jor Sir Fraser to reply. He'had nothing to do with what tdok p'nee in the Police Court. It .was* rather iiufcrtuiinle;, that the evidence given in that' court .by ..Ssrgo'irit .Cqjui in referenco lo his noticing that there were: no hoHles hi L'ynch's possession when ho entered Leckie's shop, had not come l»fore the Police ,• Court. It was not at all satisfactory. The." mi.gift.rale. heard a. oase, p.nd, vhiqhever,.way the balance of evidence wont, there mic/ht he an appeal to tho Supreme Court. It was not fair to a. magistrate, nor was it conducive lo the satisfactory administration of justice, to withhold important ovi-' dei-ee. It was most unfortunate that the additional evidence now before the court did not come before'the magistrate. • But, excluding that evidence, he was of opinion that there, was evidence upon which he was entitled to hold.that liqu«r had been sold to Lynch'. They had LynchV own statement that ho' hud, purchased two bottles'of beer' in defendant's, shop and paid 3s'for theju!' It wi's true that evidence was given by a man that .'had been, drinking. But there was ci-r-ToWtiou in some important nar.ticu'.ars. He. was seen coming out of Leckie's shon with the beer in bis pos session.. Ho excluded 'the ovWenco-of Sergeant Conn and of Constable Il'Cartney as to whether whwi tbey'sjuv him .e» into' the .shop- lie had beer in his possession, The .evidence of' Constable.Murray yas couHnsive that, when /Lynch cnnie out. of tho shop on th'e second occasion'.he had l beer in hi.) possession; whilst Leckie'.hiin.w'f. wins quite positive that the limn had no beoi in his possession when lie entered the* bouje. ■Defendant's evidence, tliou«|| in some points lllisdlisfaclory, was probably (rue in that. If Lynch had no bcrr' when be went into the lic-iew, and Leclue himself said ho would liavrl noiieril it. had ho had, and he lintT'beer. when lie left, it was certain'lie ninet have obtained it there. Under, the circumstances'he bfid' that, there was proor of tho s'uiw'.v of beer to Lynch. He,'therefore, upheld." (ho con-, viotion, and/'dismissed the appoal'-'wtth costs (i'T "». exclusive of witnesses' fees); '■■